Don’t roll out your Issue 2 game plan too quickly!
Action Item 1:
Ohio may pass implementation rules. ZR will provide updates – we welcome you to sign up at zashinandrich@zrlaw.com for our legal alerts so you have them hot off the net!
Training Points
Every supervisor, safety team member, and human resource employee interacting with employees should learn the basics about recreational marijuana to best understand its potential impact in the workplace.
Key facts to impart include:
#1: The Federal Government still classifies marijuana as an illegal Schedule I controlled substance. So, Ohio’s “legalization” of medical marijuana (MM) and now recreational marijuana (RM) does nothing to change the fact that use, possession, sale, transfer, or distribution remains illegal under federal law and can result in federal criminal charges.
#2: Marijuana has two primary types: Sativa (energizes with lower CBD and higher THC) and Indica (relaxes with higher levels CBD with equal or lower THC concentration). Cannabis hybrids typically contain increased THC percentage, with unique CBD-to-THC ratios. The cannabis industry now refers to “chemovars” aka “strains” of marijuana: Type I (high THC); Type 2 (THC/CBD combined); and Type 3 (high CBD). The key takeaway – behaviors will vary depending on the cannabis type consumed.
#3: Recreational marijuana (RM) comes in many different forms – hashish (for brewing or smoking), edibles, and topicals – and can be natural or synthetic. Also, THC concentration levels can vary considerably between RM products. So, managers need to be on the lookout for RM in varied forms, some of which may resemble well-known consumer products. For example, Stoney Patch RM edible packaging resembles Sour Patch candy products.
#4: The human body processes RM forms differently. The lungs absorb smoked or vaped RM directly into the bloodstream. The stomach and liver process RM edibles or drinks. So, when one ingests RM, the effects take longer to appear and have stronger effect than inhaling RM. The “delay” in feeling the effects of edibles may result in a person eating a higher THC concentration and can result in an overdose.
#5: One under the influence of RM (or MM) may exhibit symptoms such as: dizziness; loss of coordination; trouble thinking or problem solving; hallucinations; seizures; anxiety; red, bloodshot eyes; short-term memory issues; tiredness; or hostility.
#6: RM containing natural or synthetic THC can be addictive. One dependent on RM may experience withdrawal symptoms.
Action Item 2:
Provide RM basic training to your management employees as soon as practicable.
Policy Treatment
While Issue 2’s passage legalized RM, it did not require any Ohio employer to alter drug and alcohol policies. Since most Ohio employers had revised their policies after Ohio legalized MM in 2016, little likely needs to be done at this time. That said, companies should confirm to employees that current drug free workplace and drug and alcohol policies remain in full force and effect and that marijuana continues to be prohibited, under policies that prohibit it.
Action Item 3:
Review the company’s drug and alcohol policy to confirm it received updates after 2016 and continues to prohibit marijuana use, possession, transfer, distribution, or sale in the workplace and on work sites. Should revisions be necessary, contact legal counsel for support. Note: All DOT regulated employers, keep watch for DHHS oral fluid test option – Areas to Watch #1 below.
Federal Drug-Testing Requirements All Remain in Full Force and Effect
#1: Transportation Industry: Passage of Issue 2 does not remove or alter drug testing regulations imposed by the federal government on the transportation industry. Department of Transportation (DOT) drug and alcohol testing programs and requirements must remain in full effect now and after implementation of Issue 2 on December 7, 2023, for all DOT agencies, including but not limited to the: Federal Aviation Administration (FAA), Federal Motor Carrier Safety Administration (FMCSA), Federal Railroad Administration (FRA), and Federal Transit Administration (FTA).
#2: Federal Workplaces and Non-Federal Workplaces with a Federal Contract or Federal Grant: The Federal Drug-Free Workplace Act of 1988 (DFWA) requires implementation of a Drug-Free Workplace Program in all federal workplaces and those non-federal workplaces holding a federal contract of $100,000 or greater or federal grant of any amount. Nothing in Issue 2 alters the DFWA drug testing requirements.
Areas to Watch
#1: Drug Testing Options: DOT published anew rule giving employers an option of utilizing an oral fluid test that took effect June 1, 2023. Companies cannot implement oral fluid testing until the Department of Health and Human Services (DHHS) certifies at least two laboratories (one as primary and the second as the split specimen laboratory). On November 1, 2023, DHHS publish edits current list of HHS-Certified Laboratories, which stated that no oral fluid specimen certified laboratories exist to date (available here). Companies should remain poised to revisit their drug and alcohol testing policies once DHHS identifies at least two certified laboratories for oral fluid specimen testing. The oral fluid testing would provide a faster and less intrusive option to those employers covered by DOT regulations.
#2: Workplace Accidents & Injuries: Reports vary on whether a direct link between RM(and/or MM) legalization and increased workplace accidents and injuries exists.
*Please contact ZR Team members David P. Frantz dpf@zrlaw.com and Sarah J. Moore sjm@zrlaw.com with any questions or issues you would like them to address.